Vol 7 No 1 - Roger Williams University School of Law

the brow” claims in those countries will need to be asserted undersui generis law like the emerging European database laws, unfaircompetition law22 or unjust enrichment law.23Moral RightsIn contrast to the Anglo-American approach, the intellectualproperty law of continental Europe (especially copyright law) haslong recognised both an economic and personal aspect tointellectual property rights.24 The personal aspect which isencompassed by the third category of theories in Fisher’staxonomy is known as a moral right.25Moral rights are personal rights belonging to authors orcreators of copyright material and exist quite independently fromeconomic rights. They continue to exist even after the economicrights have been transferred. The principal moral rights are:The right of attribution, that is the right of the creator of22. See generally Int’l News Serv. v. Associated Press, 248 U.S. 215 (1918)(discussing unfair competition law); Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d841 (2d Cir. 1997) (ruling professional basketball games were not “original works ofauthorship” protected by Copyright Act); Bd. of Trade of City of Chicago v. Dow Jones,456 N.E. 2d 84 (Ill. 1983) (ruling publisher’s stock market indexes and averages couldnot be used by board of trade as the basis for its proposed stock index futures contractswithout the consent of the publisher); Wendy J. Gordon, On Owning Information:Intellectual Property and a Restitutionary Impulse, 78 Va. L. Rev. 149, 281 (1992)(suggesting that “the judicial experience in the allied area of restitution has suggestedthat economic and other norms should, and do, condition the implementation of theimpulse to grant reward for labor expended”); J.H. Reichman & Pamela Samuelson,Intellectual Property Rights in Data?, 50 Vand. L. Rev. 51, 56 (1997) (proposing “eitherthe use of unfair competition principles to protect database contents, or the adoption ofan intellectual property regime based on more refined liability principles, rather thanon exclusive property rights, that would reconcile the need for legal incentives to investwith a calculus of net social benefits”).23. See Matarese v. Moore-McCormack Lines, Inc., 158 F.2d 631 (2d Cir. 1946);Bristol v. Equitable Life Assurance Soc’y of U.S., 30 N.E. 506 (N.Y. 1892); Brian F.Fitzgerald & Leif Gamertsfelder, Protecting Informational Products (IncludingDatabases) Through Unjust Enrichment Law: An Australian Perspective, 20 Eur. Intell.Prop. Rev. 244 (1998).24. See Joined Cases C-241-242/91, Radio Telefis Eireann and Indep. TelevisionPubl’ns Ltd. v. Comm’n, 1995 E.C.R. I-743, at para. 71, [1995] 4 C.M.L.R. 718 (1995)(explaining “The Court of First Instance is right . . . in stating that the essentialfunction of copyright is to protect the moral rights in the work and ensure a reward forcreative effort”); see also Universal Declaration of Human Rights, supra note 15; seegenerally Millar, 98 Eng. Rep. at 252-53; Gerald Dworkin, Moral Rights and theCommon Law Countries, 5 Austl. Intell. Prop. L.J. 5 (1994).25. Fisher, supra note 12.